Equal Parenting Time Reversed in Tennessee Divorce: Shultz v. Fuller

Facts: Mother and Father divorced and entered an agreed permanent parenting plan designating Mother as the primary residential parent but awarding Father 120 days per year of co-parenting time. Shortly thereafter, both parents lodged petitions against the other alleging contempt for a variety of claimed sins of omission and commission. Eventually, both parents filed motions to modify the parenting schedule, with Mother seeking to restrict Father’s time considerably and Father seeking “50/50 custody,” or equal co-parenting time. After a hearing, the trial court found, among other things, that it was in Child’s best interest to have more contact with Father. The trial court established a parenting schedule of seven days with Mother followed by seven days with Father. Mother appealed.

The Court began by acknowledging the very deferential standard of review afforded to the decisions of trial courts in matters of child custody and visitation, which standard can be succinctly summarized by the following excerpt:

Because custody and visitation determinations often hinge on subtle factors, including the parents’ demeanor and credibility during . . . proceedings themselves, appellate courts are reluctant to second-guess a trial court’s decisions. Appellate courts should only set aside the trial court’s judgment in such cases when it falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record.

Modification of an existing parenting arrangement involves a two-step analysis. The parent attempting to modify the existing custody or visitation arrangement first must prove that a material change in circumstance has occurred. The determination of whether a “material change of circumstance” has occurred requires a different standard depending upon whether a parent is seeking to modify custody (i.e., change the primary residential parent) or modify the residential parenting schedule.

When a trial court changes custody, the court must make findings as to the reason and the facts that constitute the basis for the custody determination.

Once the trial court determines that a material change of circumstance has occurred, the court must next determine whether modification of the existing parenting arrangement is in the best interest of the child. This determination requires consideration of a number of factors, including those set out at Tennessee Code Annotated § 36-6-106(a) to make the custody determination, and those at Tennessee Code Annotated § 36-6-404(b) to establish the residential schedule. The statutes place a mandatory duty on the courts to consider these factors.

While the trial court must consider all the statutory factors, it is not required to list every applicable factor along with its conclusion as to how that particular factor impacted the overall custody determination. However, the trial judge must make a best interest analysis to determine which parent is comparatively more fit.

After reviewing the record, the Court concluded as follows:

From our review of the trial court’s order, we cannot conclude that the trial court made a comprehensive best interest analysis in this case. The court did not indicate that it considered the fact that Mother had been the primary caregiver all of the Child’s life prior to the change in custody. Nothing in the record indicates that Mother was unable or unwilling to provide for the Child or that Father’s “remarriage” enhanced his ability to provide for the Child. Mother has exhibited great stability as compared to Father. Also, consideration must be given to the character and behavior of the other persons who reside in Father’s home and who have interactions with the Child. Indeed, Father has noted in his brief that while Wife’s son’s bipolar episodes have decreased with medication, he still continues to experience them. Father has further acknowledged that because of Wife’s custody disputes regarding her children, counselors come “to our home once per week to help us with domestic violence, anger management, and alcohol and drug awareness.” Consideration of all these matters is required by the relevant statute to make a proper custody decision regarding the Child. . . .

Father, as the petitioner recognized by the trial court, bears the burden of showing both that a material change of circumstance affecting the welfare of the Child has arisen and that such material change weighs in favor of greater custody rights than under the challenged custody order. Under a proper analysis of the Child’s best interests pursuant to Tennessee Code Annotated § 36-6-106, Father has failed in meeting his burden. We remand the matter so the parties may present evidence concerning the Child’s best interest.

The Court reversed the trial court and remanded the case for additional proof.

K.O.’s Comment: It would be helpful if the Court did a better job explaining how the trial court, who actually heard live all the evidence the Court read on paper, and who personally observed the witnesses and their demeanor face-to-face, failed to conduct a “proper analysis” of the statutory factors. Simply reciting the facts favorable to Mother’s position before stating the bald conclusion that the trial court failed to “properly” analyze those facts provides little guidance to lawyers and litigants.